Viewing Veins

My daughter has “rolling” veins. Honestly, whenever she has an venous puncture, the needle pokes and tears her surrounding tissues, searching for a vein. Only the most skilled phlebotomists (and one absolutely amazing nurse) can find her veins on the first try.

Enter a cool new invention (wish I’d written the patent for it). A “vein viewer” gives the practitioner an HD view of the veins in a person’s appendage. The vein viewer uses near-infrared light to locate the hemoglobin in the blood in the veins and project an image of the veins on the person’s skin, making finding the vein on the first poke much, much easier.

Is that cool or what?

Quote of the Decade

“I’m alone and outgunned, scared and inexperienced, but I’m right.”
–John Grisham, The Rainmaker (emphasis added)

I find this quote apropos to a litigation I’m currently handling. When the opposing counsel’s 50-cal cannon booms, that cannon has shot off only one round, and now it must be reloaded. I, on the other hand, have a six-shooter; I can get off six shots to their one.

And my client is in the right.

In re: Beineke Further Defines Plants Eligible for Patent Protection

Sometimes the Other Two types of patent get short shrift in the mainstream patent press. Not so this week. The Court of Appeals for the Federal Circuit (CAFC) has just decided In re: Walter F. Beineke, Dockets 2011-1459, -1460, ___ USPQ ____. Beineke appealed from the USPTO’s rejection of his claims for patent protection for varieties of white oak trees that exhibit stronger genetic traits than do other trees of that species that he found in a yard not his own. Those trees are about 115 years old, making proof of human intervention in their breeding — um — difficult. Beineke couldn’t show to the Examiner’s satisfaction that the trees were “cultivated.”

The patentability of plants is established under 35 USC 161, which states:

Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.

Beineke argued that, under 161, a human being need not participate in the creation of the new plant; the USPTO argued that, under 161, no plant is patentable unless a human being participate in its creation. This clash led to two rejected patent applications, two BPAI appeals and, finally, to the consolidated appeal before the CAFC.

The CAFC held that a plant must have been created by human activity and it must have been created by its inventor. Thus, a plant, it is now clear, cannot be patented unless there has been some human intervention in the breeding of that plant. The Court says, “[T]he … Act was not meant to include plants discovered by chance by plant explorers and the like.”

Obamacare Passes Constitutional Muster

That’s a surprise; I expected CJ Roberts to vote to strike down the Affordable Health Care Act. I guess he’s more of a switch hitter than I thought.

The Court upheld the Affordable Healthcare Act’s individual mandate not under the Commerce Clause — it acknowledges that not doing something can have no effect on commerce — but under the Taxing Clause.

This is really weird to say, but I actually agree with the dissent on this (although it’s a rare case that I agree with the conservative end of the bench on). Justices Scalia, Thomas, Alito and Kennedy write in the dissent, “The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.

“The Act before us here exceeds federal power both in
mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding.”

While this Act may benefit millions by requiring health insurance for all (and by providing an affordable option, paid through taxes, for those who cannot afford private insurance), I’m not sure this is really the way to go. I don’t think we can afford the fiscal cost of insuring millions through the federal system under this program, and I disagree with the new taxes and the new limitations in quantity and quality we face in healthcare.

Socialized medicine, here we come. Let’s look to England for our model (we all know how — um — successful English healthcare is…).

Millions of Patents

Factoid: The USPTO has issued millions of patents. Number 8,000,000 will issue in 2011.

The USA is a very, very inventive country. At 8,000,000 patents in just under 200 years, we’ve come a long way since the verdict was issued that “everything that can be invented has already been invented.” We’ll keep on inventing … and inventing … and inventing. That’s how progress is made.

Musings of the Season

The other day a cashier was lamenting, in advance, to one of my FaceBook pals (from whom I copied this posting) of the “dreaded next few weeks”. He said that he dreads the holidays and the number of customers that will yell at him, scowl at him, complain to him and push their way into lineups just to get ahead.

“Hmmmm,” my friend thought to herself, “Doesn’t sound much like Christmas to me.” Then she thought some more. She promised the cashier that if by chance she came to his till again over the holidays, he would be guaranteed one smile and no grumpiness. He grinned at my FaceBook friend, thinking that she was joking……but my friend kept on thinking.

So, here’s what’s become of my friend’s thought process. This is a challenge for me and for you. Take time daily over the month of December to be intentional about doing something for someone else that expresses the Truth of Christmas (or of whatever winter holiday you choose to celebrate): show love by shoveling a neighbor’s driveway; show peace by letting someone ahead of you in line; show hope by paying for someone’s groceries or plugging their parking meter; show joy by writing a note to put in your kids lunchbag or to send to a long lost friend; show hospitality by inviting someone new over for dinner; show compassion by holding a door open for an elderly person. Whether its for a stranger, a friend or someone we live with, the list is endless, but its so easy to lose sight of in the hustle and bustle of our Christmas obligations.

I hope that by being intentional, our eyes will be opened more often to the people around us and the ways that we can make their lives better. Maybe, by experiencing a bit of hope, love, joy or peace, the recipient will choose to continue to do the same.

Maybe the world can become a better place.

This post is the brainchild of Jacki Petker Kliever, whom I have never met except to steal this posting from her Facebook page.

China to issue the most patents in 2011

Now isn’t this interesting. China, whose ancient and noble culture does not include much respect for intellectual property, believes that it will be the leader in the world for issuing patents in 2011, outgunning the USPTO, the European Patent Office, and Japan. They say that both number and quality of patents have increased steadily to the point where the Chinese Patent Office will issue the greatest number of patents in 2011.

I never knew it was a race. Patents are good within the geographic boundaries of the sovereign nation that issues the patent during the term of the patent. Therefore, patent offices don’t compete with each other the same way that, say, a car dealership competes with the dealership down the road. You can — and often should — obtain patent protection in more than one country. China cannot grant patent protection in the United States or in Japan or in the European Union or in any other country; the patents issuing in China may well also issue in other countries. Other patent offices might consider hunkering down and getting ready for a blitz of applications based on the number of Chinese patents whose owners may seek foreign protection.

I am delighted, however, to see that China’s Patent Office is so very busy. That says to me that Chinese law recognizes the intellectual property rights of others; the culture, then, should follow suit, though perhaps the culture will move more slowly than does the law in this instance. The fact that they are signatory to the Patent Cooperation Treaty (they entered the treaty on 1 January 1994) says that the laws governing this culture are changing, which will eventually change the culture’s respect for intellectual property.

So, bravo for China!

The Lion Sleeps Forever

The Lion Sleeps Tonight by The Tokens George David Weiss of The Tokens, the group that brought The Lion Sleeps Tonight to worldwide fame, died yesterday.

I always thought that The Tokens had written the song. Turns out I was wrong. The tune was written by a Solomon Linda, who lived outside of Johannesburg. He sold the rights to his song to a movie for less than $1. That tune went on to make millions, but the songwriter died in squalor. He was so destitute at the time of his death in 1962 that his wife couldn’t afford a headstone. Meanwhile the song was raking in millions of dollars for the copyright holder.

Mr. Linda’s estate sued the copyright holder in 2000, and the copyright holder agreed to pay royalties on the song retroactive to 1987. There was really no reason for the copyright holder to agree to share the wealth with the songwriter’s estate. The copyright had been sold in 1952, before the song came into its own. The purchase and sale transferred the rights to the song to the purchaser. It was really very decent of the studio to agree to share the wealth. It was, in fact, the right thing to do.